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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.bergsteinullrichlaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

Let's start with Rivera, who goes to trial because co-workers harassed him over his national origin. Under the Supreme Court's Burlington Northern precedent, in order to win a retaliation claim, the employer's reaction to the good-faith complaint has to dissuade a reasonable worker from making or supporting a charge of discrimination. While context matters in this equation and the Court will look at the alleged acts of retaliation in the aggregate and not piecemeal, Rivera does not have enough. "Rivera points to two disciplinary citations he received for insubordination over a two-year period, his assignment to drive particularly 'dirty buses,' one late overtime payment, and Lift Line’s one-time refusal to give him a half-day off for a doctor’s appointment." But, the Court of Appeals (Lohier, Droney and Kearse) says that Rivera "presented no evidence that they reflected anything other than RGRTA’s 'enforce[ment] [of] its preexisting disciplinary policies in a reasonable manner.'”

Talton, though, gets a trial on his retaliation claim. His supervisor, Tibero, told Talton that filing complaints of discrimination could get him fired. And, when Talton told Tibero about the hostile work environment, Tibero responded, "suck it up and get over it, nigger!" If that does not dissuade someone from complaining about discrimination again, then I don't know what would. The Court of Appeals agrees with me: "In our view, such discriminatory harassment from a supervisor may alone suffice to establish an adverse employment action, as 'unchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment action so as to satisfy the [third] prong of the retaliation prima facie case.'” In contrast, when other co-workers complained about Talton's alleged disruptive behavior in the workplace, management took care of it expeditiously. "A reasonable juror could infer that RGRTA’s swift response to the complaints by Talton’s co-workers was designed to, and did, send a message that Talton’s employment at Lift Line was in serious jeopardy as a result of the EEOC charges."